You are on page 1of 18

TABLE OF CASES

CASE LAW Page No.

A.P. Pollution Control Board v. Prof. M. V. Nayudu 12

Exxon Shipping Co. v. Baker 6

Indian Council for Enviro-Legal Action vs. Union of India (Bichhri Village case) 4

M. C. Mehta v. Kamal Nath& Ors 5,12

Narmada Bachao Andolan v. Union of India 14

The Nicaragua case 9

The North Sea Continental Shelf case 9

The Oleum Gas Leak case (M.C. Mehta vs. Union of India) 4

Vellore Citizens Welfare Forum v. Union of India 3,4,11,12,13


POLLUTER PAYS PRINCIPLE

"If anyone intentionally spoils the water of another ... let him not only pay damages, but purify
the stream or cistern which contains the water...”

– Plato, Greek Philosopher

The Polluter Pays principle is one of the oldest principles of environmental law and also one of
the most intuitive. After all, making the polluter pay for its wrongs makes sense on both,
practical as well as moral levels. It is expected that would-be polluters will be deterred in the
future and it seems fair that if one has dirtied the environment, one should be expected to clean it
up too. So far, so good. But one big question remains – who should pay for causing pollution,
and how much?

The ‘polluter pays’ principle is an environmental policy principle which requires that the costs of
pollution be borne by those who cause it. Polluter Pays Principle has become a popular
catchphrase in recent times. 'If you make a mess, it's your duty to clean it up'- this is the main
basis of this slogan. It should be mentioned that in environmental law, the 'polluter pays
principle' does not refer to "fault." Instead, it favors a curative approach which is concerned with
repairing ecological damage. It's a principle in international environmental law where the
polluting party pays for the damage done to the natural environment. It is regarded as a regional
custom because of the strong support it has received in most Organization for Economic Co-
operation and Development (OECD) and European Community (EC) countries. International
environmental law itself mentions little about the principle.

EVOLUTION

“The difference between animals and humans is that animals change themselves for the
environment, but humans change the environment for themselves”. 1

1
Ayn Rand: Her Life and Thought,” was a Russian-American novelist, philosopher, playwright, and screenwriter,
accessed March 30, 2018, http://www.aristos.org/aynrand.htm.
The Polluter Pays Principle was promoted during the 1970s2 by the Organization for Economic
Cooperation and Development (OECD) Guiding Principles concerning International Economic
Aspects of Environmental policies where under the polluter was held responsible for the
environmental damage and pollution.

The modern day principle of polluter pays was first incorporated in Principles 213 and 224 of the
Stockholm Declaration, 19735. Thereafter, the European Charter on the Environmental and
Health, 19896 and the Single European Act, 19867 made provisions for applying the polluter pays
principle. The United Nations Conference on Environment and Development, 19928 in Principle
15 incorporated this principle.

Subsequently, the Rio Declaration laid down the guidelines for sustainable development meaning
thereby a strategy to cater the needs of the present generation without compromising the needs of
the future generation. In furtherance of the aim of sustainable development Rio Declaration
Principle 16 of the Rio Declaration enshrined the Polluter Pays principle. The 16th of the 27
principles enshrined in the Rio Declaration on Environment and Development outlined this as,
“the approach that the polluter should, in principle, bear the cost of pollution…”.

After Rio, the Polluter Pays Principle began to be applied explicitly in environmental
jurisdictions. In India, compensation to victims of environmental disasters was being hotly
debated following 1984’s Bhopal gas tragedy. A year before the Rio declaration, India enacted a
Public Liability Insurance Act, making it mandatory for industries to get insurance — the

2
OECD: Principles on the Environment Ministerial Meeting of the OECD, adopted on May 24-26, 1972 of 11 ILM
1172-72 (1972)
3
States shall cooperate to develop further the international law regarding liability and compensation for victims of
pollution and environmental damage caused by the activities within the jurisdiction or control of such states to areas
beyond their jurisdiction.
4
The charter provides that environmental standards should be constantly revised in light of new knowledge and new
economic conditions applying the polluter pays principle whereby any public or private entity causing or likely to
cause damage to the environment is financially responsible for restorative or preventive measures. of Alexander
Kiss and Dinnah Shelton, International Environment Law 66(1991)
5
11 ILM 1416 (1972)
6
The Rio Declaration Environment and Development c.f. 31 ILM 876 (1992)
7
States shall develop national laws regarding liability and compensation for the victims of pollution and other
environmental damage. States shall also cooperate in a more determined manner to develop further international law
regarding liability and compensation for adverse affects of environmental; damage caused by activities within their
jurisdiction or control to areas beyond their jurisdiction
8
31 ILM (1992)
premium for this insurance would contribute to an Environment Relief Fund to provide
compensation to victims of a Bhopal-like disaster.

The courts in India were quick to apply the Polluter Pays Principle. In Vellore Citizens’ Welfare
Forum vs. Union of India and Others9, the Supreme Court had “no hesitation in holding” that
the Polluter Pays Principle was “part of the environmental law of the country”. The Principle
came onto the statute books in 2010 when the National Green Tribunal Act10 was enacted.
Ultimately, in the National Green Tribunal Act 2010, it was stated th at the NGT
would decide cases based on the polluter pays principle (among others): A.20.The
Tribunal shall, while passing any order or decision or award, apply the principles of […] the
polluter pays principle.

THE CONCEPT

The Polluter Pays Principle imposes liability on a person who pollutes the environment to
compensate for the damage caused and return the environment to its original state regardless of
the intent.

As a main function of the principle the OECD recommendations specify the allocation “of costs
of pollution prevention and control measures to encourage rational use of scarce environmental
resources and to avoid distortions in international trade and investment.” The polluter should
bear the expense of carrying out the measures “decided by public authorities to ensure that the
environment is in an acceptable state” (OECD 1972).

Since its first appearance in 1972, the PPP is today understood in a much broader sense, not only
covering pollution prevention and control measures but also covering liability, e.g. costs for the
clean-up of damage to the environment, (OECD 1989 and 1992). Also, the field of application of
PPP has been extended in recent years from pollution control at the source towards control of
product impacts during their whole life cycle (extended producer responsibility).

9
Vellore Citizens’ Welfare Forum vs. Union of India and Others 1996(5) SCC 647
10
THE NATIONAL GREEN TRIBUNAL ACT, 2010, Act No. 19 of 2010 (India)
The preventive function of the PPP is based on the assumption that the polluter will reduce
pollution as soon as the costs which he or she has to bear are higher than the benefits anticipated
from continuing pollution. As the costs for precautionary measures also have to be paid by the
potential polluter, he or she has an incentive to reduce risks and invest in appropriate risk
management measures. Finally, the PPP has a curative function, which means that the polluter
has to bear the clean-up costs for damage already occurred.

VIEW OF THE INDIAN JUDICIARY

The Indian Judiciary has incorporated the Polluter Pays Principle as being a part of the
Environmental Law regime is evident from the judgments passed.

Indian Council for Enviro-Legal Action vs. Union of India11 (Bichhri Village case) The
Polluter Pays" principle has been held to be a sound principle by the Court in this case. The
Court held that once the activity carried on is hazardous or inherently dangerous, the person
carrying on such activity is liable to make good the loss caused to any other person by his
activity irrespective of the fact whether he took reasonable care while carrying on his activity.
The rule is premised upon the very nature of the activity carried on.

Vellore Citizens' Welfare Forum vs. Union of India12 -The Court interpreted the meaning of the
Polluter Pays Principle as the absolute liability for harm to the environment extends not only to
compensate the victims of the pollution but also the cost of restoring the environmental
degradation. Remediation of the damaged environment is part of the process of 'Sustainable
Development' and as such the polluter is liable to pay the cost to the individual sufferers as well
as the cost of reversing the damaged ecology."

The Oleum Gas Leak case (M.C. Mehta vs. Union of India)13 -The Court laid down that an
enterprise engaged in a hazardous or inherently dangerous industry which poses a potential threat
to the health and safety of persons working in the factory and to those residing in the surrounding

11
Indian Council for Enviro-Legal Action vs. Union of India 1996(3) SCC 212
12
Vellore Citizens' Welfare Forum vs. Union of India 1996(5) SCC 647
13
The Oleum Gas Leak case (M.C. Mehta vs. Union of India) AIR 1987 SC 1086
areas, owes an absolute and non-delegable duty to the community to ensure that no harm results
to any one on account of hazardous or inherently dangerous nature of the activity which it has
undertaken. The enterprise is absolutely liable to compensate for such harm and irrespective of
all reasonable care taken on his account. The larger and more prosperous the enterprise, greater
must be the amount of the compensation payable for the harm caused on account of an accident
in the carrying on of the hazardous or inherently dangerous activity by the enterprise.

In M. C. Mehta vs Kamal Nath& Ors 14 , court by considering the PPP as the law of the land,
ordered that:
"It is thus settled by this Court that one who pollutes the environment must pay to reverse the
damage caused by his acts." Court disposed this matter by giving a show cause notice to the span
motels, that, why Pollution-fine and damages be not imposed as directed by us. This case
subsequently came up in front of the court in the year 2000 and court directed to the span motels
that: "The powers of this Court under Article 32 are not restricted and it can award damages in a
PIL or a Writ Petition as has been held in a series of decisions". Henceforth, court directed a
fresh notice to be issued to M/s. Span Motel to show cause why in addition to damages,
exemplary damage be not awarded for having committed the acts set out and detailed in the main
judgment. Finally in 2002, while granting exemplary damages court held that:"Liability to pay
damages on the principle of 'polluter pays' in addition to damages, exemplary damages for
having committed the acts set out and detailed in the main judgment. Considering the object
underlying the award of exemplary damages is to serve a deterrent for others not to cause
pollution in any manner. So the quantum at Rs. 10 lakhs is fixed for the span motels."

FLAWS IN THE PPP:

It is true that polluter pays principle has a positive effect to reduce pollution. The principle seems
quite relevant for pollution that occurs during industrial activity, although it remains inefficient
in the case of historical pollution. Most developing countries, however, have not yet subscribed
to the PPP as a main environmental policy guideline. Legal theorists discovered few loopholes
of this rule. The flaws are as follows:

14
M. C. Mehta vs Kamal Nath& Ors (1997)1 SCC 388
 Firstly, ambiguity still exists in determining 'who is a polluter'. In legal terminology, a
'polluter' is someone who directly or indirectly damages the environment or who creates
conditions relating to such damage. Clearly, this definition is so broad as to be
unsupportive in many situations.15
 Second, a large number of poor households, informal sector firms, and subsistence
farmers cannot bear any additional charges for energy or for waste disposal.
 Third, small and medium-size firms from the formal sector, which mainly serve the
home market, find it difficult to pass on higher costs to the domestic end-users of their
products.
 Fourth, exporters in developing countries usually cannot shift the burden of cost
internalization to foreign customers due to elastic demand.
 Lastly, many environmental problems in developing countries are caused by an
overexploitation of common pool resources. Access to these common pool resources (in
line with the PPP) could be limited in some cases through assigning private property
rights, however, this solution could lead to severe distributional conflicts.

All of these problems make it difficult to implement the PPP as a guideline for environmental
policy in developing countries. Despite the fact that Polluter Pay Principle was publicized by
early conservationists as a means to reduce ecological pollution, still many consider it as a 'vague
idea'.16Some put forward their argument that under this principle a polluter fulfils his obligations
when he pays at least some of administrative expenses of the agencies who regulate pollution
activities 'Exxon Valdez' case17 is the best example of this criterion of Polluter Pays Principle.18
Others argue that it can only be satisfied by polluters when they will pay the total depollution

15
For example, Mr.Aryaan owns a BMW .If his BMW emits harmful gas in the atmosphere, he will be directly
liable for the emission .Furthermore, the manufacturer of the vehicle will be indirectly liable for committing
ecological damage too and so the retailer of the vehicle and the fuel supplier, and the government who created
'conditions relating to the damage' by building roads and neglecting public transport regulations.
16
http://www.unece.org/ie/intersol/documents/s.8e.pdf (Who can pay for depollution? an economic approach)
17
Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008),
18
In 1989, an oil tanker owned by Exxon spilled out over 300,000 barrels of crude oil into the sea and caused
significant environmental hazard. Exxon was forced to pay $125 million in fines to the federal government and the
state of Alaska and $900 million into a fund for environmental projects controlled by government, habitat
protection, and scientific research, among other things
cost. And the rest support the view that tax (like 'Carbon Taxes') should be legitimised on the
users of the natural resources that cause atmospheric hazards.19

The primary problem with this principle occurs with the fact that by its very nature,
environmental pollution is not always easy to narrow down to a single source which can be
strictly punished. A great deal of pollution is from non-point sources, cumulative in nature and
occurs over long time spans. Thus, identifying a perpetrator is both difficult and in some cases,
technically unfeasible.

Another problem appears with the principle itself – there is no clarity on how exactly the
damages should be calculated. This means that a polluter may be asked to pay for the actual costs
of clean-up, the damage caused to the victims of environmental damage, a fine or a penalty based
on their ability to pay, a general levy aimed at a clean-up of the problem as a whole, or all of the
above. This ambiguity can cause problems and the principle tends to be used differently in
different cases.

CONCLUSION

Although the Polluter Pays Principle has helped to mitigate the damage being caused to the
environment to some extent, the provision remains an inadequate remedy as ambiguity persists
regarding clear identification of the actual polluter. The polluter may a part of the "production
chain" and it is difficult to impose the liability on such polluter when the courts consider the
parameters of extent and contribution of causing pollution.

Moreover, under this principal, the amount of compensation to be charged for the restoration of
the damage caused to the environment remains to be inadequate in comparison to the loss
actually caused. More effective and unambiguous provisions with regards to the implementation
of the Polluter Pays Principle would be beneficial in the longer run.

19
Barrister Abu Hena Mostofa Kamal, "Polluter pays principle and its limitations"
PRECAUTIONARY PRINCIPLE

Human life is, has always been, and will always be full of risks .The urge to deal with the risks
we face is a basic condition of our existence. Sailors sail on boats with lifeboats not because they
expect wreckage, but because they know that it would be irrational not to be prepared for the
potential dangers that they might encounter on their voyage. For reasons of equity and feasibility,
governments sought to apportion the economic costs of such intervention by requiring polluters
to pay the cost of pollution. It soon became apparent, however, that this Polluter Pays Principle
was practicable only if accompanied by a preventive policy, intended to limit damage to what
could be repaired or compensated for. This ‘prevention is better than cure’ model marks the
second stage of governmental action for environmental protection. This stage was characterized
by the idea that science can reliably assess and quantify risks, and the Prevention Principle could
be used to eliminate or diminish further damage.

The emergence of increasingly unpredictable, uncertain, and unquantifiable but possibly


catastrophic risks such as those associated with Genetically Modified Organisms, climate change
etc., has confronted societies with the need to develop a third, anticipatory model to protect
humans and the environment against uncertain risks of human action: the Precautionary
Principle (PP). The emergence of the PP has marked a shift from post damage control (civil
liability as a curative tool) to the level of a pre-damage control (anticipatory measures) of risks.

In its most basic form, the PP is a strategy to cope with scientific uncertainties in the assessment
and management of risks. It is about the wisdom of action under uncertainty: ‘Look before you
leap’, ‘better safe than sorry’, and many other folkloristic idioms capture some aspect of this
wisdom. Precaution means taking action to protect human health and the environment against
possible danger of severe damage. The PP is often seen as an integral principle of sustainable
development that is development that meets the needs of the present without compromising the
abilities of future generations to meet their needs. Within the United Nations system, the PP is
included in the 1992 Rio Declaration on Environment and Development, and in the United
Nations Framework Convention on Climate Change. Later, the PP was incorporated into the
article on precaution (Article 5.7) of the World Trade Organization’s (WTO) Agreement on
Sanitary and Phytosanitary Measures (SPS Agreement) of 1994, as well as into the Biosafety
Protocol that was approved in Montreal in January 2000.

DEFINITION OF PRECAUTIONARY PRINCIPLE

There are two definitions of Precautionary Principle which are widely accepted-

1. The first definition is given in the Rio Declaration of 1992. It states that in order to
protect the environment every state should apply the principle to the best of their abilities.
When there are chances of irreversible and serious damage, lack of full scientific should
not be the reason for the postponement of preventive measure.20
2. The second definition is based on the Wingspread Statement on Precautionary Principle,
which was given 1998. This definition states that when there is a threat to the
environment and human health, precautionary measures should be taken even when full
scientific data is not available. The principle should examine the alternative options
available (even the option of taking no action).

There is a significant difference between the two definitions. The first definition talks about
“irreversible and serious damage, but the second definition talks about “harm” to the
environment and human health in general. Thus, the scope of the second definition is wider.

PRECAUTIONARY PRINCIPLE AS A RULE OF CUSTOMARY LAW

The status of the precautionary principle as a rule of customary law is significant because a rule
of customary law creates obligations for all states, except those that have persistently objected to
the practice and its legal consequences. The statute of International Court of Justice defines
customary international law as “evidence of general practice accepted as law”21. The Nicaragua
case22 and the North Sea Continental Shelf case23 complement this article of the Statute and

20
Principle 15 of Rio Declaration, 1992.
21
The Statute of the International Court of Justice, available at http://www.icj-
cij.org/documents/index.php?p1=4&p2=2&p3=0
22
Nicaragua. ICJ Rep. (1986), para. 97-109.
clarify two requirements of customary international law. According to International Court of
Justice, customary international law arises when nations follow a practice in an extensive and
virtually uniform manner and this practice is followed with the conviction that it is obligatory to
do so under international law (opinio juris). Consequently, the opposition of some states does not
interfere with the development of a customary rule24.

However, the best indicators of state practice remain the instruments of international law and
state domestic law. Currently, the precautionary principle is used in more than 90 international
declarations and agreements25. In this context, the number of ratifications (majority of treaties
are multilateral) and the number of states signing declarations also reflect broad acceptance of
the rule by states26. The abundance of treaties and declarations incorporating the precautionary
principle provides at least an estimate of state practice and acceptance, which implies that the
precautionary principle is crystallizing into a rule of customary environmental law. Another
primary indicator of state practice is domestic law. The precautionary principle is widely used in
the domestic environmental law of Germany, Belgium and the Nordic countries (Denmark,
Norway, Sweden, Finland and Island)27. In 1992, the principle became part of National Strategy
for Ecologically Sustainable Development in Australia. In 1993, the principle was incorporated
into Australia’s Environmental Protection Act28. In 1996, the precautionary principle was
defined in the Oceans Act of Canada29. Even US law makes some indirect allusions to the
precautionary principle (as measures) when dealing with questions of food safety30 and air

23
North Sea Continental Shelf. ICJ Rep. (1969),. para. 43-44
24
Ibid.
25
Agne Sirinskiene, The status of Precautionary Principle: Moving towards a Rule of Customary Law,
Jurisprudence, 2009, 4(118), p. 349–364, ISSN 2029–2058 (online).
26
Marr, S. The Precautionary principle in the law of the see – modern decision making in international law, Kluwer
Law International, 2003, p. 207 cited at Agne Sirinskiene, The status of Precautionary Principle: Moving towards a
Rule of Customary Law, Jurisprudence, 2009, 4(118), p. 349–364, ISSN 2029–2058 (online).
27
Implementing the Precautionary Principle: Approaches from the Nordic Countries. de Sadeleer, N. (ed.).
Earthscan, 2007 cited at Agne Sirinskiene, The status of Precautionary Principle: Moving towards a Rule of
Customary Law, Jurisprudence, 2009, 4(118), p. 349–364, ISSN 2029–2058 (online).
28
Environment Protection Act, 1993, Sec. 10, available at
http://www.austlii.edu.au/au/legis/sa/consol_act/epa1993284/s10.html
29
Oceans Act, Preamble available at http://laws.justice.gc.ca/en
30
Federal Food, Drug, and Cosmetic Act 1958, Sec. 402; 409 available at
http://www.fda.gov/opacom/laws/fdcact/fdcact4.htm#sec402
pollution31. Furthermore, as a part of environmental impact assessment, the precautionary
principle may be found in the local laws of about fifty countries32. These examples illustrate the
wide implementation of the procedural aspect of the precautionary principle.

PRECAUTIONARY PRINCIPLE AND INDIAN LAW

The Indian courts have particularly embraced the precautionary principle.

In Vellore Citizens Welfare Forum v. Union of India33, the petitioners filed a petition in the
public interest under Article 32 of the Constitution of India, directed against the pollution caused
by enormous discharge of untreated effluent by the tanneries and other industries in the State of
Tamil Nadu. The Supreme Court of India noted that:
“though the leather industry is of vital importance to the country as it generates foreign exchange
and provides employment avenues it has no right to destroy the ecology, degrade the
environment and pose as a health hazard”. The Court recognised that a balance must be struck
between the economy and the environment: “The traditional concept that development and
ecology are opposed to each other, is no longer acceptable; ‘Sustainable Development’ is the
answer”.

It reviewed the development of the concept of sustainable development in the international


sphere, from the Stockholm Declaration of 1972, Our Common Future in 1987 and Caring for
the Earth in 1991, to the Earth Summit and the Rio Declaration in 1992.It went on to state:
“Some of the salient principles of ‘Sustainable Development’ as culled out from the Brundtland
Report and other international documents are Intergenerational Equity, Use and Conservation of
Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays,
principle, Obligation to assist and co-operate, Eradication of Poverty and Financial Assistance to
the developing countries. We are, however, of the view that ‘The Precautionary Principle’ and

31
Goldstein, B. D.; Carruth, R. S. Implications of the Precautionary Principle for Environmental Regulation in the
United States: Examples From The Control of Hazardous Air Pollutants in the 1990 Clean Air ActAmendments.
Law and Contemporary Problems. 2003, 66: 250−252
32
The Precautionary Principle in International Law. Freestone, D; Hey, E. (eds.). Kluwer, 1996, p. 71.
33
Vellore Citizens Welfare Forum v. Union of India AIR 1996 SC 2715.
‘The Polluter Pays’ principle are essential features of ‘Sustainable Development’. The
‘Precautionary Principle’ in the context of the municipal law means:

 Environmental measures – by the State Government and the statutory authorities – must
anticipate, prevent and attack the causes of environmental degradation.
 Where there are threats of serious and irreversible damage, lack of scientific certainty
should not be used as a reason for postponing measures to prevent environmental
degradation.
 The ‘Onus of proof’ is on the actor or the developer/industrialist to show that his action is
environmentally benign”.

The Supreme Court held that “the precautionary principle and the polluter pays principle are part
of the environmental law of the country”.

In M.C Mehta v. Kamal Nath34, the Supreme Court of India affirmed the decision in Vellore
Citizens’ Welfare Forum v Union on India35 upholding the precautionary principle as part of
the environmental law of India.

In A.P. Pollution Control Board v. Prof. M. V. Nayudu36, the Supreme Court comprehensively
reviewed the precautionary principle. An application was submitted by a company to the
Pollution Control Board for permission to set up an industry for production on “BSS Castor Oil
Derivatives”. Although a letter of intent had later been received by the company, the Pollution
Control Board did not give its no objection certificate to the location of the industry on the site
proposed by it. The Pollution Control Board, while rejecting the application for consent, inter
alia, stated that the factory fell under the red category of polluting industry and it would not be
desirable to locate such an industry in the catchment area of Himayat Sagar, a lake in Andhra
Pradesh. The appeal filed by the company against the decision of the Pollution Control Board
was accepted by the appellate authority. A writ petition was filed in the nature of public interest
litigation and also by the Gram Panchayat challenging the order of the appellate authority but the
writ petition was dismissed by the High Court. On the other hand, the writ petition filed by the

34
M.C Mehta v. Kamal Nath (1997) 1 SCC 388
35
Vellore Citizens’ Welfare Forum v Union on India AIR 1996 SC 2715.
36
AP Pollution Control Board v. Prof. M V Nayudu AIR 1999 SC 812.
company was allowed and the High Court directed the Pollution Board to grant consent subject
to such conditions as may be imposed by it. The decision of the High Court was the subject
matter of challenge in the Supreme Court of India. The Supreme Court referred to the difficulty
courts face in dealing with highly technological or scientific data. The Court noted that
uncertainty in science in the environmental context has led international conferences to formulate
new legal theories and rules of evidence. One of these is the precautionary principle.

The Supreme Court discussed the earlier decision in Vellore Citizens Welfare Forum v Union of
India37 where it was held that the precautionary principle, and the shifting of the burden of proof
onto the developer or industrialist who is proposing to alter the status quo, are part of the
environmental law of the country. They found it “necessary to explain the meaning of the
principles in more detail, so that courts and tribunals or environmental authorities can properly
apply the said principles in the matters which come before them”.

The Court reviewed the development of the precautionary principle at international level,
including reference to Principle 15 of the Rio Declaration. The Court identified inadequacies of
science as the real basis that has led to the precautionary principle. The precautionary principle is
“based on the theory that it is better to err on the side of caution and prevent environmental harm
which may become irreversible”. It was observed:

“The principle of precaution involves the anticipation of environmental harm and taking
measures to avoid it, or to choose the least environmentally harmful activity. It is based on
scientific uncertainty. Environmental protection should not only aim at protecting health,
prosperity and economic interest, but also protect the environment for its own sake.
Precautionary duties must not only be triggered by the suspicion of concrete danger, but also by
(justified) concern or risk potential”.

The Court next elaborated on the burden of proof referred to in the Vellore case and stated:

“It is to be noticed that while the inadequacies of science have led to the ‘precautionary
principle’, the said ‘precautionary principle’ in its turn, has led to the special principle of burden
of proof in environmental cases where burden as to the absence of injurious effect of the actions
37
Vellore Citizens Welfare Forum v Union of India AIR 1996 SC 2715.
proposed, is placed on those who want to change the status quo reversal of the burden of proof,
because otherwise in environmental cases, those opposing the change would be compelled to
preserve the status quo. This is often termed as a reversal of the burden of proof, because
otherwise in environmental cases, those opposing the change would be compelled to shoulder the
evidentiary burden, a procedure which is not fair. Therefore, it is necessary that the party
attempting to preserve the status quo by maintaining a less polluted state should not carry the
burden of proof, and the party who wants to alter it must bear this burden.

The Precautionary Principle suggests that where there is an identifiable risk of serious or
irreversible harm, including, for example, extinction of species, widespread toxic pollution in
major threats to essential ecological processes, it may be appropriate to place the burden of proof
on the person or entity proposing the activity that is potentially harmful to the environment.”.

In Narmada Bachao Andolan v. Union of India38, the Court was called upon to decide various
legal questions arising from the Sardar Sarovar Project involving the construction of a dam on
the Narmada River. An environmental clearance had been given for the project. At the time it
was granted there was no obligation to obtain any statutory clearance and hence the
environmental clearance granted was essentially administrative in character. Nevertheless, the
environmental clearance was challenged. It was alleged the necessary particulars in regard to the
environmental impact of the Project were not available when the environmental clearance was
given and it therefore could not have been given. It was further alleged that the execution of the
Project, having diverse and far reaching environmental impact, without proper study and
understanding of the environmental impacts and without proper planning of mitigative measures,
was a violation of fundamental rights of life of the affected people guaranteed under Article 21
of the Constitution of India. In the course of judgment, the majority noted the submission of the
petitioners that “in cases pertaining to the environment, the onus of proof is on the person who
wants to change the status quo and, therefore, it is for the respondents to satisfy the Court that
there will be no environmental degradation”. The majority dealt with this argument of shifting of
the burden of proof and the precautionary principle stating:

38
Narmada Bachao Andolan v. Union of India AIR 2000 SC 3751.
“It appears to us that the ‘precautionary principle’ and the corresponding burden of proof on the
person who wants to change the status quo will ordinarily apply in a case of polluting or other
project or industry where the extent of damage likely to be inflicted is not known. When there is
a state of uncertainty due to lack of data or material about the extent of damage or pollution
likely to be caused then, in order to maintain the ecology balance, the burden of proof that the
said balance will be maintained must necessarily be on the industry or the unit which is likely to
cause pollution. On the other hand where the effect on ecology of environment of setting up of
an industry is known, what has to be seen is that if the environment is likely to suffer, then what
mitigative steps can be taken to off set the same. Merely because there will be a change is no
reason to presume that there will be ecological disaster. It is when the effect of the project is
known then the principle of sustainable development would come into play which will ensure
that mitigative steps are and can be taken to preserve the ecological balance. Sustainable
development means what type or extent of development can take place which can be sustained
by nature/ecology with or without mitigation”.

CONCLUSION

Apart from being a part of the environmental protection instruments, Precautionary Principle has
also become a crucial part of the Public International Law. With the law gaining significant
momentum in the sphere of sustainable development, it is only inevitable that concept such as
these is accepted by all the nations. Precautionary Principle, a fundamental element of
sustainable development has been discussed much in the legal context, but improvements are still
needed in implementation.

Judiciary plays an immense role in linking the law with the concept of sustainable development.
So, it is vital that the judiciary also supports this kind of approaches.

It can be concluded that among other international environmental law principles, the
precautionary principle is the only principle which has the capacity to foresee possible serious
and irreversible damage to environment. It is also clear that environmental legislations in India
are not very open to expressly show the presence of precautionary principle, but indirectly with
various provisions they speak of precautionary approach only. International regulation of
precautionary principle, though, has not been accepted under legislation, but has found a place in
national environmental policy. What is noteworthy here is that Indian Supreme Court, when
found that environmental legislations cannot be of any help to determine the environmental
damage which could be of irreversible nature, it is the precautionary principle which not only
could foresee such irreversible damage to the environment, but also shifted the burden of proof
from complainant to respondent. It is also remarkable to note that the Supreme Court in India,
where based on the applicability of precautionary principle, the environmental Justice was
promulgated. The journey of nurturing the precautionary principle, though, started from the
Vellore citizens case, but will have to go many miles further to ensure the protection and
preservation of natural environment.
BIBLIOGRAPHY

BOOKS

Jaswal, P.S: Environmental Law (Allahabad Law Agency,4th edition,Reprint: 2016)

Leela Krishanan,P, The Environmental Law in India (LexisNexis Butterworth, Nagpur,4th


Edition 2016)

Shyam Diwan and Amin Rosencrantz, Environmental Law and Policy in India, Cases, Materials
and Statutes (Oxford University Press, New Delhi. 2nd Edn.)

WEBSITES

Polluter Pays Principle Case Study, available at:


https://www.ukessays.com/essays/environmental-studies/polluter-pays-principle.php (visited on
April 1, 2018)

Polluter Pays Principle: Pros and Cons of Indian Laws Relative to International Practices,
available at: https://www.scribd.com/doc/222138299/Polluter-Pays-Principle-Pros-and-Cons-of-
Indian-Laws-Relative-to-International-Practices (visited on March 25, 2018)

Precautionary Principle, available at: https://www.lawctopus.com/academike/precautionary-


principle/ (visited on March 29, 2018)

You might also like